I was the Chairman of the Arson Review Committee, affiliated with the Innocence Project that got the Commission interested in these two cases. Until very recently, I understood that the question before the Commission concerned the responsibility of a state agency after it learns that it has used flawed science to obtain a conviction. That apparently has changed.

I have recently been provided with the August 20, 2010 letter from Fire Marshal Paul Maldonado on the Willingham case, in which he states that the Texas State Fire Marshal's office “stands behind the original investigator’s report and conclusions.” Although it is understandable that a state agency would resist admitting to an unspeakable error, I feel compelled to reply to some of the information provided in that letter, which seems to be designed to mislead the Commission and the public about the quality of work done by the Texas State Fire Marshal's Office in the Willingham case.

(I note that Mr. Maldonado's letter does not deal with the Willis case, but because the evidence in the two cases was nearly identical, one would presume that it is the Fire Marshal's office position that Ernest Willis was, in fact, guilty, and should have been executed as well. It would be interesting to hear Mr. Maldonado's position on that subject.)

With respect to the specific answers provided, what Mr. Maldonado seems to have done is to look very selectively at the report, and then took an equally selective approach to the guidance in NFPA 921.

I note that nowhere in his correspondence to the Fire Marshal refer to actual trial testimony, which presumably contains some of the "conclusions" by which the Fire Marshal's office is standing. In this letter, I will first discuss the parsing of the Guide and the parsing of the report, and then I will discuss some of the more outrageous sworn testimony by Deputy Fire Marshal Manuel Vasquez.

There is much discussion of V-patterns and low burning, and some quotations from NFPA 921, but the letter leaves off the most important guidance from NFPA 921 about interpretation. One may cite “observations” all day long, but it is the forensic scientist’s interpretation of those observations that sways a jury. I note that the Fire Marshal attached copies of two editions of NAPA 921, and would urge the scientists on the Commission to read the entire sections cited, rather than the isolated sentences.

Here is the important guidance on interpretation of low burns and irregular patterns:

4.17.7.2 Irregular Patterns.
Irregular, curved, or “pool-shaped” patterns on floors and floor coverings should not be identified as resulting from ignitable liquids on the basis of observation of the shape alone. In cases of full room involvement, patterns similar in appearance to ignitable liquid burn pattern scan be produced when no ignitable liquid is present.

The lines of demarcation between the damaged and undamaged areas of irregular patterns range from sharp edges to smooth gradations depending on the properties of the material and the intensity of heat exposure. Denser materials like oak flooring will generally show sharper lines of demarcation than thermoplastic (e.g., nylon) carpet. The absence of a carpet pad often leads to sharper lines.

These patterns are common in situations of postflashover conditions, long extinguishing times, or building collapse. These patterns may result from the effects of hot gases, flaming and smoldering debris, melted plastics, or ignitable liquids. If the presence of ignitable liquids is suspected, supporting evidence such as the use of a combustible gas indicator, chemical analysis of debris for residues, or the presence of liquid containers should be sought. It should be noted that many plastic materials release hydrocarbon fumes when they pyrolyze or burn. These fumes may have an odor similar to that of petroleum products and can be detected by combustible gas indicators when no ignitable liquid accelerant has been used. A “positive” reading should prompt further investigation and the collection of samples for more detailed chemical analysis. It should be noted that pyrolysis products, including hydrocarbons, can be detected in gas chromatographic analysis of fire debris in the absence of the use of accelerants.

It can be helpful for the laboratory, when analyzing carpet debris, to burn a portion of the comparison sample and run a gas chromatographic analysis on both. By comparing the results of the burned and unburned comparison samples with those from the fire debris sample, it may be possible to determine whether or not hydrocarbon residues in the debris sample were products of pyrolysis or residue of an accelerant. In any situation where the presence of ignitable liquids is suggested, the effects of flashover, airflow, hot gases, melted plastic, and building collapse should be considered. (Emphasis added)

Nowhere in the record is there any indication that Mr. Vasquez gave even the slightest consideration to the possibility that the full room involvement that occurred in this case may have been responsible for the alleged “pour patterns.”

Mr. Maldonado’s most obvious attempt to mislead the Commission and the public occurs at paragraph number seven, where the following quotation occurs. "The investigation report stated: The pieces of broken glass on the ledge of the north windows to the Northeast bedroom just closed a craze (spiderwebbing) condition." The letter that goes on to cite a section of NFPA 921 that indicates there is no published research to confirm that crazing indicates rapid heating. I was the author of the published research referred to in NFPA 921 that showed that crazing was always a result of rapid cooling, and could not be induced by rapid heating.

The Fire Marshal’s letter somehow manages to omit the second sentence in the paragraph from Fire Marshal Vasquez’s his report on page 4, which states, "This condition is an indication that the fire burned fast and hot." One can only conclude that the Fire Marshal was intending to deceive the Commission by not revealing this incorrect interpretation written in the report. One hopes that Texas State Fire Marshals do not still believe that crazing is a sign of rapid heating.

Presumably, Mr. Maldonado also stands by the statements of conclusions reached by Mr. Vasquez when he testified:

• That auto-ventilation is an indicator of incendiary activity;
• That wood fires do not exceed 800 degrees F;
• That the condition of the bedsprings was meaningful;
• That accelerated fires burn at a higher temperature than fires fueled with ordinary combustibles.

If the Texas State Fire Marshal’s Office indeed “stands by” these erroneous conclusions, then there definitely will be (and have been) many more wrongful convictions for arson in Texas.

Rather than responding to a list of questions, I would have preferred that Mr. Maldonado respond to the original Innocence Project complaint, something that I thought was supposed to happen while Dr. Beyler was conducting his review. I hope that at some point, Mr. Maldonado is required to defend the positions taken by Mr. Vasquez while testifying, which he has so far not addressed.

I hope that there is some follow up to Mr. Maldonado’s letter. As it stands now, this appears to be just one more attempt to hide the truth.